In this section

Facts

All identifying information has been deleted from this opinion as required by Chapter 268B, § 3(g).

You are an Inspector for the Registry of Motor Vehicles (RMV), a state agency responsible for regulating the use of motor vehicles in the Commonwealth. As such, your duties include investigation, law enforcement, office supervision and administering road and written examinations.

You are interested in holding a part-time position outside of your normal working hours as a classroom instructor for a driving school. Licenses to operate a driving school are issued by the RMV to applicants who have held a driving instructor certificate for at least two years. G.L. c. 90, §32G. Instructor certificates are granted upon successful completion of a driving instructor's course.

Your duties as an instruction would be limited to classroom instruction and would not involve the on-the-road component of the driver education course. Since the driving school is located in another county and its students examined by two other RMV offices, you would not be likely to encounter any of your students in performing your duties as Inspector. You state that if a student of yours ever appeared before you at the RMV, you would disqualify yourself.

Question

May you perform the classroom instruction component of a driver education course while simultaneously employed by the RMV?

Answer

Yes, as long as you follow certain guidelines outlined below.

Discussion

As an RMV Inspector, you are a state employee and subject to the conflict of interest law, G.L. c. 268A. Section 4 of that statute prohibits you from being compensated by or acting as agent for anyone other than the state in connection with any "particular matter" [1] in which the state is a party or has a direct and substantial interest.

The examination of an applicant for a driver's license is a "particular matter." You would be prohibited from being compensated by anyone other than the state in connection with such an examination. As an employee of the driving school, however, your compensation is not in connection with that examination but, instead, is in return for your teaching. You state that you don not appear before the RMV on behalf of your students or the school.

The purpose of the prohibition in § 4 is to prohibit state employees from using their positions to assist outsiders in their dealings with the state. The rationale behind this is that public employees should be loyal to the state and, where their loyalty to the state conflicts with their loyalty to a private party or employer, the state's interest must win out. In this case, however, your private employment will not present any situations where such conflicting loyalties will arise. The instruction you perform is based on information readily available from the RMV to all interested in obtaining a driver's license. As a result, neither the rationale behind, nor the terms of, § 4 support prohibiting you from teaching the classroom portion of the driver training course.

Section 6 of G.L. c. 268A prohibits you from participating in any particular matter in which a business organization employing you has a financial interest. Should such a matter arise in which you would normally be required to participate, you must notify your appointing official and the Ethics Commission of the nature of the particular matter and the financial interest in it. The appointing official must then either 1) assign the matter to another employee, or 2) assume responsibility for the matter himself, or 3) make a determination, sent to you and the Ethics Commission, that the financial interest involved is not so significant as to affect the integrity of the services which the Commonwealth may expect from you.

In advisory opinion EC-COI-82-105, the Commission held that a driving school owner has a financial interest in the decision by the RMV to grant a license to an applicant from the driving school because of the effect such a decision will have on the reputation and success of the driving school. This rationale is equally applicable to the school itself, i.e. the school also has a financial interest in the success of its students in their applications for a driver's license. Therefore, you may not act as an RMV Inspector in connection with license applications by students from the driving school at which you teach. Should such a student appear before you, you must comply with the provisions of § 6.

Section 23 of the conflict of interest law provides certain general standards of conduct applicable to all state employees. Section 23(c) states that you shall not improperly disclose confidential information acquired in the course of your official duties, nor use such information to further your personal interests. Section 23(d) prohibits the use or attempted use of your official position to secure unwarranted privileges or exemptions for yourself or others. Because of the close relationship between your public position and your private employment, you should take great care to comply with these provisions. [2]

[1] For purposes of G.L. c. 268A, "particular matter" is defined as any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the General Court. G.L. c. 268A, § 1(k).

[2] In advisory opinion EC-COI-79-93, the Commission advised a state employee that § 23 prohibited him from teaching a license exam preparation course where he served as a license examiner, regardless of whether he examined his own students. However, because of the large number of RMV Inspectors the separation between the various offices, the potential for abuse addressed by the ruling in EC-COI-79-9 is not found in this case.